Top Ethics Lawyers Take Trump to Court Citing Constitutional Violations

The legal watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed a federal lawsuit in the Southern District of New York at 9 AM today accusing President Donald Trump of violating the Constitution by allowing his businesses to accept payments from foreign governments. Under the constitutional provision, “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

“The foreign emoluments clause of the Constitution prohibits Trump from receiving anything of value from foreign governments, including foreign government-owned businesses, without the approval of Congress,” CREW said in a press release, adding that its lawsuit requests the court to issue a judgment defining elements of the Foreign Emoluments Clause that the new president’s interests do or will violate, and an injunction forbidding him from accepting such payments.

Trump has refused to divest his businesses, the group continued, pointing out that Trump “is now getting cash and favors from foreign governments, through guests and events at his hotels, leases in his buildings, and valuable real estate deals abroad.” Moreover, his “acceptance of any benefits” from governments he does business with––China, India, Indonesia, and the Philippines among them––directly violate the Constitution.

“As a direct result of [Trump]’s purposeful refusal to acknowledge that he is submerged in conflicts of interest and his purposeful refusal to take precautions necessary to avoid those conflicts,” the lawsuit alleges, “[he] is now committing and is poised to continue to commit many violations of the Foreign Emoluments Clause — some documented, and others not yet apparent due to the complex and secretive nature of [Trump]’s business holdings — during the opening moments of his presidency and continually thereafter.”

In addition to investments or planned business dealings in 10 foreign countries, CREW’s lawsuit mentions the leases held by the Industrial and Commercial Bank of China and the Abu Dhabi Tourism & Culture Authority at Trump Tower in New York and foreign diplomats’ stays and foreign embassies’ events at Washington’s Trump International Hotel. Merely processing the suit could prove embarrassing for the president and his administration, particularly if the lawsuit successfully extracts details from the private files of the Trump Organization.

Norman L. Eisen, CREW’s board chair and vice-chair and an Obama administration ethics lawyer, told reporters that the legal team hopes to use the lawsuit to obtain a copy of Trump’s federal tax returns, which they need to properly assess what income, payments or loans Trump has received from foreign governments. (In addition to Eisen, the lawyers on the case, according to CREW’s press release, include “an all-star team of top constitutional scholars, ethics experts and litigators who have combined to argue 45 cases before the Supreme Court.” Among them are CREW’s vice-chair Richard Painter, an ethics lawyer to Republican President George W. Bush, and Constitutional law scholars Erwin Chemerinsky, Laurence H. Tribe and Zephyr Teachout, and Deepak Gupta of Gupta Wessler PLLC.)

In a statement, CREW Executive Director Noah Bookbinder said, “We did not want to get to this point. It was our hope that President Trump would take the necessary steps to avoid violating the Constitution before he took office. He did not. His constitutional violations are immediate and serious, so we were forced to take legal action.”

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One would think, he added, that Trump, who made his slogan “America First” would “want to strictly follow the Constitution’s foreign emoluments clause since it was written to ensure our government officials are thinking of Americans first, and not foreign governments.”

The lawsuit could face significant legal hurdles, such as CREW’s standing to sue. Generally speaking, to file a lawsuit alleging wrongdoing, the plaintiff must show they’ve suffered specific harm from that wrongdoing. Who would Trump hurt by violating the Emoluments Clause? CREW says it was, arguing in its lawsuit that it “has been forced to divert essential and limited resources – including time and money – from other important matters that it ordinarily would have been handling to the Foreign Emoluments Clause issues involving Defendant, which have consumed the attention of the public and the media.”

“CREW’s whole purpose is about combating corruption in the federal government,” said CREW vice-chair Richard Painter. “So up until this point, the two major causes of corruption in the government were the revolving door in Washington and campaign finance. The vast majority of resources were spent on that. It was a two-front war and now this opens up a third front. The injury to the organization is that it’s much more difficult to accomplish the organization’s mission.”

A Trump representative referred all inquiries to Morgan Lewis & Bockius, a law firm representing the president on ethics matters; a representative for the firm said it does not “comment on our clients or the work we do for them.” At an earlier news conference, however, Sherri A. Dillon, a partner with the firm, dismissed suggestions that Trump violated the Foreign Emoluments Clause. “No one would have thought when the Constitution was written that paying your hotel bill was an emolument,” she said at the time.

The president’s son Eric Trump, who is an executive vice president of the Trump Organization, insisted the company had taken more steps than required by law to avoid possible legal exposure, such as agreeing to donate any profits collected at Trump-owned hotels that come from foreign government guests to the U.S. Treasury. “This is purely harassment for political gain,” he told the New York Times, “and, frankly, I find it very, very sad.”